IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140015374 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for an upgrade of his under honorable conditions (general) discharge.

2.  As a new issue, the applicant requests correction of his reentry (RE) code from an RE-3 to a more favorable code.

3.  The applicant states he was pulled from the hospital while recovering.  He was not allowed to clear post by himself.  He had no physician assistant in his unit who would initiate a medical board.

4.  The applicant provides three letters of recommendation (previously submitted) and hospital discharge summary (previously considered). 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120020731, on 25 June 2013. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request for reconsideration was not received within one year of the Board's original request.  However, because his new issue (RE Code) is related to the narrative reason for separation, the characterization of service will be addressed by the Board. 
3.  The applicant's records show he enlisted in the Regular Army on 4 January 2008 and he held military occupational specialty 12B (Combat Engineer).  He served in Kuwait/Iraq from 15 February to 30 April 2009 and in Afghanistan from 1 May 2009 to 9 February 2010. 

4.  He was awarded or authorized the Afghanistan Campaign Medal with campaign star, Army Commendation Medal, NATO Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with campaign star, Army Service Ribbon, Overseas Service Ribbon, Combat Action Badge, and the Driver and Mechanic Badge with Driver-W Clasp. 

5.  On 23 April 2010, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

6.  On 1 May 2010, he was counseled by his platoon sergeant for failing to be at his appointed place of duty and for showing up to duty with a smell of alcohol.  He was escorted to the office of the Provost Marshal and administered a breathalyzer that confirmed a breath alcohol test of 0.024 which was below the .050 threshold.  He was advised that this type of behavior is not acceptable. 

7.  On 20 May 2010, he was counseled by his platoon sergeant for failing to be at his appointed place of duty and for showing up to duty with a smell of alcohol.  He was escorted to the office of the Provost Marshal and administered a breathalyzer that confirmed a breath alcohol test of 0.042 which was below the .050 threshold.

8.  On 20 September 2010, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  He cited the applicant's two instances of reporting to duty with alcohol in his breath, one instance of not being in an accountability formation, one instance of failing to be at his appointed place of duty, and one instance of testing positive for marijuana.  The immediate commander recommended he be retained on active duty but advised him that the separation authority was not bound by this recommendation. 

9.  On 21 September 2010, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.

10.  On 27 September 2010, the applicant’s intermediate commander recommended disapproval of the applicant's rehabilitative transfer to another unit.  He further recommended an honorable discharge if separated. 

11.  On 13 October 2010, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, pattern of misconduct and directed the applicant be furnished a general discharge under honorable conditions.  The applicant was accordingly discharged on 30 November 2010. 

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with a general discharge under honorable conditions.  He completed a total of 2 years, 10 months, and 27 days of creditable active military service and he had 60 days of lost time.   Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – JKA
* item 27 (RE Code) – 3
* item 28 (Narrative Reason for Separation) – Pattern of Misconduct

13.  On 19 January 2012, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of the characterization of service. 

14.  On 25 June 2013, the ABCMR denied his petition for an upgrade of his general discharge to a fully honorable discharge. 

15.  He provides three letters of recommendation from individuals who attest to his exceptional performance, reliability, and professionalism during deployment.  He also provides a hospital discharge summary that concluded he was significantly impaired with war-related trauma symptoms.

16.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	b.  Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It states, in pertinent part, that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Table 3-1 included a list of the Regular Army RE codes.

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JKA" is the correct code for Soldiers separating under chapter 14-12b of Army Regulation 635-200 by reason of pattern of misconduct.

19.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant exhibited a pattern of misconduct in the form of failing to be at his appointed place of duty, showing up to work smelling of alcohol, and testing positive for marijuana.  Accordingly, his chain of command initiated separation action against him.  He was advised of and acknowledged his rights.  The separation authority ultimately approved the separation action in accordance with chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct, his service was unsatisfactory.  Therefore, he is not entitled to a fully honorable discharge. 

3.  The applicant's RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  Absent his continued misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his continued misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – pattern of misconduct" and the appropriate RE code associated with this discharge is an RE-3 which is correctly shown on his DD Form 214.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  He exhibited a pattern of misconduct and his chain of command initiated separation action against him.  He was assigned the RE code that is commensurate with the reason for his separation. He has not submitted any substantiating evidence to show his RE code is in error or inequitable.  Therefore, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With respect to the characterization of service, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120020731, dated 25 June 2013.
2.  With respect to the new issue (RE code), the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140015374



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ABCMR Record of Proceedings (cont)                                         AR20140015374



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